94 F. 3d 649 - United States v. Gamboa-Jimenez

94 F3d 649 United States v. Gamboa-Jimenez

UNITED STATES of America, Appellee,v.Rene GAMBOA-JIMENEZ, also known as Henry Valles-Rodriguez, Appellant.

No. 96-1048.

United States Court of Appeals, Eighth Circuit.

Submitted Aug. 7, 1996.Filed Aug. 16, 1996.

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.

Before FAGG, WOLLMAN, and MURPHY, Circuit Judges.

PER CURIAM.

1

Rene Gamboa-Jimenez (Gamboa) challenges the 16-month sentence imposed by the district court1 upon his guilty plea to unlawfully entering the United States after having been deported, in violation of 8 U.S.C. § 1326. We affirm.

2

At sentencing, Gamboa requested that the district court depart downward under U.S.S.G. § 5K2.11, p.s. (Lesser Harms). He asserted he had reentered the country for treatment of a serious injury, perceiving that his inability to obtain adequate medical treatment in his native country was a greater harm than that engendered by unlawfully reentering this country. The district court rejected his request, instead offering to recommend to the Bureau of Prisons that Gamboa be placed in a medical facility. Responding to a suggestion in the presentence report, the court noted several arrest warrants were pending against Gamboa, but declined to depart upward under U.S.S.G. § 4A1.3 (Adequacy of Criminal History Category).

3

Gamboa now argues that, because the district court believed it could depart upward under section 4A1.3, the court apparently believed it was precluded from departing downward under section 5K2.11. We may review the district court's refusal to depart only if it "is premised on the belief that the court lacked the authority to [depart]." United States v. Jenkins, 78 F.3d 1283, 1290 (8th Cir.1996). Having carefully reviewed the sentencing transcript, we conclude the court was aware of its authority to depart under section 5K2.11 and exercised its discretion not to do so, and thus we may not further review the district court's decision.